Blogs

Monthly Archives: December 2018

Posted: December 31, 2018

Plaintiff in Bad Faith Action Against Third-Party Insurer Entitled to Collect Amount of Judgment in Excess of the Policy Limits

On December 11, 2018, Judge Garaufis of the EDNY issued a decision in Government Employees Ins. Co. v. Saco, 12-cv-5633 (NGG) (ST), holding that a plaintiff in a bad faith action against a third-party insurer was entitled to collect the amount of a judgment in excess of the policy limits, even if the insured was... Read more »

Posted: December 31, 2018

Memorandum of Understanding Found to be Unenforceable Agreement to Agree in the Future on Terms Rather Than Binding Contract

On December 20, 2018, the Third Department issued a decision in Doller v. Prescott, 2018 NY Slip Op. 08733, holding that a memorandum of understanding was an unenforceable agreement to agree in the future on terms rather than a binding contract, explaining: Plaintiff’s first, second, fifth and seventh causes of action for breach of contract, fraud,... Read more »

Posted: December 30, 2018

Claims Adding New Defendants Related-Back to Original Claims Even Though New Defendants Could Have Been Identified Earlier

On December 20, 2018, the Third Department issued a decision in NYAHSA Servs., Inc., Self-Insurance Trust v. People Care Inc., 2018 NY Slip Op. 08735, holding that claims adding new defendants related-back to the date of the original claims even though the new defendants could have been identified earlier, explaining: [I]n order to avoid dismissal, it... Read more »

Posted: December 29, 2018

Written Agreement Requirement of CPLR 2104 Does Not Apply to Pre-Litigation Settlements

On November 8, 2018, Justice Hudson of the Suffolk County Commercial Division issued a decision in Walter Boss, Inc. v. Roncalli Freight Co., Inc., 2018 NY Slip Op 51891(U), holding that CPLR 2104’s requirement that a stipulation of settlement be in writing does not apply to the settlement of disputes before litigation, explaining: CPLR 2104... Read more »

Posted: December 28, 2018

Upcoming Arguments in the Court of Appeals in January 2019

Upcoming arguments in the Court of Appeals in January 2019 that may be of interest to commercial litigators: Arrowhead Capital Finance, Ltd. v. Cheyne Specialty Finance Fund L.P. et al., APL-2018-00005 (to be argued Wednesday, January 9, 2019) (“Attorney and Client–Unauthorized Practice of Law–Whether failure of plaintiff’s counsel to maintain an in-state office at the... Read more »

Posted: December 28, 2018

Insurer’s Conflict of Interest Entitled Insured to Select Independent Defense Counsel

On December 11, 2018, Judge Failla of the SDNY issued a decision in Liberty Mut. Fire Ins. Co. v. Hamilton Ins. Co., 17-CV-2350 (KFP), holding that an insured had the right to select defense counsel because of the insurer’s conflict of interest. Liberty v. Hamilton arose from an injury at a construction site.  The injured... Read more »

Posted: December 27, 2018

Court Dismisses Tortious Interference Claims on Summary Judgment

On November 15, 2018, Judge Wilson of the the Bergen County Superior Court (Law Division), issued a decision in Comprehensive Neurosurgical, P.C., et al. v. The Valley Hospital, et al., Docket No.: BER-L-6794-16, dismissing tortious interference claims on summary judgment, explaining: NJBSC alleges that Valley’s entry into the Exclusivity Agreement constituted tortious interference with prospect... Read more »

Posted: December 27, 2018

E&O Policy May Cover Amounts Employer Was Required to Pay Because of Executive Director’s Negligent Administration of Retirement Accounts

On November 30, 2018, Judge Kahn of the NDNY issued a decision in Young Men’s Christian Ass’n of Plattsburgh v. Philadelphia Indem. Ins. Co., Case No. 18-cv-0565 (KEK/DJS), denying an E&O insurer’s motion to dismiss the insured’s claim for amounts it was required to contribute to employee retirement accounts because of the insured’s negligent failure to withdraw contributions from the employees’ paychecks.... Read more »

Posted: December 27, 2018

Court Dismisses Action, Enforcing Forum Selection Clause

On December 14, 2018, Justice Emerson of the Suffolk County Commercial Division issued a decision in Somerset Fine Home Bldg., Inc. v. Simplex Indus., Inc., 2018 NY Slip Op. 51845(U), dismissing an action based on a forum selection clause, explaining: Although once disfavored by the courts, it is now recognized that parties to a contract may... Read more »

Posted: December 26, 2018

Australian Bank Bill Swap Reference Rate: Was Something Underhanded Happening Down Under

This post covers the alleged underlying facts and November 26, 2018, order by United States District Judge Lewis A. Kaplan dismissing all but one plaintiff in the case for lack of standing in Richard Dennis et al. v. JPMorgan Chase & Co., 16-CV-6496, a case in the Southern District of New York concerning alleged manipulation... Read more »